Navigating the intersection of professional ethics and religious observance

The legal landscape is constantly evolving, presenting practitioners with new challenges and ethical considerations. One such challenge has arisen with the introduction of Rule 8.3 of the California Rules of Professional Conduct, which mandates lawyers to report credible evidence of another lawyer’s misconduct to the California State Bar or relevant tribunal. While this rule serves to uphold standards of professional conduct, it has sparked concerns among some members of the legal community, particularly those who adhere to religious Jewish traditions that may conflict with such reporting requirements.

As an Orthodox Jew and a litigation attorney practicing in Hancock Park, Los Angeles, I find myself among many within the legal profession grappling with the implications of Rule 8.3 in light of our religious observances. Within the framework of “Halacha” (Jewish Law), the act of informing on another Jew, known as “Mesirah,” is generally considered a grave transgression as delineated in the Code of Jewish Law (“Shulchan Aruch”), Choshen Mishpat §388:9 (Anyone who does so loses their share in “Olam Haba” the World to Come). While there exists a vast body of rabbinic literature and responsa discussing the nuances of Mesirah (see, Halachapedia analysis of Mesira at https://halachipedia.com/index.php?title=Reporting_to_the_Authorities), such discussions are beyond the scope of this article. Suffice it to say, that this rule presents a serious dilemma for Orthodox Jewish lawyers who are committed to upholding both their professional obligations and their religious principles.

Since the Talmudic period, Jewish tradition and law have staunchly condemned the act of Mesira, even for actions deemed deplorable or sinful. This condemnation stems from the belief that such informers contributed to the suffering endured by the Jewish people during periods of persecution, particularly following the destruction of the Second Temple. Historical records suggest that the prevalence of informers became so significant that the Jewish Court of Rabbi Gamliel felt compelled to incorporate a special benediction, known as “Velemalshinim Al Tehi Sikva” (May the informers lose hope), into the daily Amidah prayer, also referred to as “Shemoneh Esrei.” This benediction, attributed to Samuel ha-Katan, served as a solemn invocation against informers, reflecting the deep-rooted aversion within Jewish consciousness towards such betrayal.

In Jewish tradition, informers, known as “Moserim” or “Malshinim,” were not only considered traitors to their people but also perceived as posing a significant threat to the safety and well-being of fellow Jews. The consequences for informers were severe and unequivocal, including excommunication, disqualification from providing testimony or taking oaths, exclusion from public prayer services, and even denial of religious burial. In some cases, informers were categorized as “Rodfim” or pursuers (Shulchan Aruch Harav Choshen Mishpat, The Laws of Damages to Body and Soul, Paragraph 11), a designation under Jewish law that could warrant their execution even before the commission of any offense, a drastic measure indicative of the severity with which this betrayal was regarded. These measures underscore the gravity with which Jewish tradition views the act of informing on one’s own community members, emphasizing the inherent betrayal and danger it represents.

The Jewish historic aversion to informers is deeply ingrained and rooted in collective memory and has significantly influenced Jewish culture throughout the ages. This aversion stems from a long history of betrayal and persecution, with apostates playing a particularly damaging role in perpetuating slander and misinformation against the Jewish community. One striking example is Nicholas Donin, an apostate whose involvement in the 1240 Disputation of Paris led to the burning of the Talmud, symbolizing the destructive impact of betrayal on Jewish texts and communities. Additionally, accounts in 1553 highlight how false reports fabricated by individuals within the Jewish community itself resulted in slander against the Talmud, leading to its widespread burning across Italy. These instances underscore the profound consequences of internal betrayal and misinformation, forcing Jewish communities to flee to new regions to escape persecution. Overall, the deep-seated aversion to informers within Jewish history has been shaped by centuries of experience with betrayal and persecution, leaving an indelible mark on Jewish culture and identity.

Mesira remains a contentious issue within Orthodox Jewish communities. While some advocate against its invocation in modern democratic and just societies like the United States, others maintain its relevance, particularly in safeguarding communal interests and religious ideals. Even according to the more stringent view, reporting would be permitted under two primary exemptions: where the secular system judges by the same rule as a Jewish court would (“Dina D’malchusa Dina”), and a case where one reports a violent and potentially dangerous person to local authorities to prevent further physical harm as well as “Chillul HaShem” (desecration of God’s name). The legal landscape surrounding Mesira in our country remains uncharted territory, with American courts yet to uphold exemptions from testifying based on religious grounds. Scholars and legal experts navigate nuanced discussions about the applicability of Mesira, especially in criminal cases where physical punishment may be at stake. While the balance between individual religious obligations and civic duties is delicate, Orthodox Jews grapple with our dual identities as insiders within our communities and participants in the broader American society.

In addition to the prohibition against Mesira, Jewish law also upholds strict injunctions against various forms of harmful speech, collectively known as “Lashon Hara” (derogatory or damaging speech), “Rechilus” (gossip or tale-bearing), “Motzi Shem ra” (slander or false accusations), and “Onaas Devarim” (causing emotional pain or distress through words). These ethical principles underscore the broader imperative within Jewish tradition to promote kindness, integrity, and empathy in interpersonal communication. Mesira, if pursued without proper consideration for these principles, could potentially violate these laws, further complicating the ethical landscape surrounding issues of informing and whistleblowing within Jewish communities. As such, individuals navigating the intersection of Mesira and legal obligations are not only tasked with upholding professional ethics but also with adhering to the overarching moral framework of Jewish law concerning speech and interpersonal conduct. Balancing these considerations presents a multifaceted challenge, demanding careful discernment and ethical reflection in navigating complex ethical dilemmas.

The introduction of Rule 8.3 has left many of us Orthodox Jewish lawyers in a state of quandary, as we seek to reconcile our duties as attorneys with our religious convictions. We pride ourselves on maintaining fidelity to both secular and Halachic law, but the clash between these two systems poses a significant challenge. Moreover, the potential consequences of violating Rule 8.3 and invoking religious defenses, such as Mesira, raise concerns about the impact on our reputations and careers.

Furthermore, as Sabbath observers and devout Jews, we have dedicated our professional legal careers to upholding our religious obligations, including abstaining from work on the Sabbath and Jewish holidays, diligently alerting courts about our religious calendars, and proudly wearing yarmulkes in courtrooms. These practices have not only been integral to our personal faith but have also earned us respect from clients, opposing counsel, and courts alike. However, the introduction of Rule 8.3 presents a unique challenge that we have not encountered before. We find ourselves at a crossroads, where our deeply held religious beliefs are seemingly at odds with our professional responsibilities, and we are deeply concerned about the potential ramifications of this conflict.

Moreover, as someone who represents Jewish clients in Bais Din (Jewish arbitration according to Halacha) and maintains connections with prominent rabbis across the country, I can attest that even our most learned scholars seem stumped when it comes to advising us on how to navigate this complex intersection of law and religion.

Moreover, it is essential to caution against cavalierly dismissing our religious sensitivities with a dismissive admonition that we should simply set aside our Halachic observance in this instance. Our commitment to Halacha is deeply ingrained and rooted in centuries of tradition, and it cannot be summarily disposed of with a mere suggestion to violate it. Asking us to compromise our religious principles in the face of professional obligations is akin to asking us to betray the very essence of our identity as Orthodox Jews. Such a request cannot be taken lightly, and we must approach this matter with the seriousness and sensitivity it deserves.

It is regrettable that the potential ramifications of Rule 8.3 were not fully anticipated during the comment period before its enactment. As legal professionals, we bear a collective responsibility to scrutinize proposed regulations and identify any unintended consequences that may arise. However, now that the rule is law, it is imperative that we address the challenges it presents head-on.

Parenthetically, history has repeatedly shown that well-intentioned ideas or movements, and even laws, can have unintended consequences that lead to greater societal harm, with ramifications that become evident only over time. Take communism, for example, which initially seemed like a promising ideology but ultimately resulted in the deaths of millions and widespread oppression. Similarly, welfare programs aimed at assisting the impoverished initially aimed at alleviating poverty have been criticized for creating a cycle of dependency and complacency, undermining individuals’ initiatives to improve their financial situations. The concept of Diversity, Equity, and Inclusion (DEI) in the workplace, while initially embraced as a means of promoting fairness and representation, has led to concerns about individuals being hired based solely on their minority status and tokenism, rather than their competence, ultimately fostering feelings of inadequacy and undermining meritocracy.

In the context of the legal profession, the recent introduction of Rule 8.3, may have been a response to specific scandals like the Tom Girardi debacle. However, it is essential to consider the potential societal ramifications and unintended consequences of such rules. While the intention may be to promote transparency and accountability, there is a risk that it could create an atmosphere of suspicion and division within the legal community. If every colleague is viewed as a potential informant, trust and collaboration (essential pillars of the profession), could be compromised, ultimately undermining the integrity of the profession. The broader implications of this “fink rule” could undermine the very fabric of the legal profession.

What seems conspicuously absent from the provisions of Rule 8.3 is the pragmatic approach of our internal intervention and rehabilitation over punitive measures. Of first addressing concerns directly with the offending attorney, offering guidance and support to facilitate positive change. Only after exhausting these efforts, and with due consideration to ethical obligations, to then escalate matters to higher authorities. This approach emphasizes the importance of fostering accountability while also prioritizing the well-being and potential for rehabilitation of the individual in question. By incorporating such principles of intervention and support into legal frameworks like Rule 8.3, we can cultivate a more holistic and compassionate approach to addressing professional misconduct within the legal profession.

Rule 8.3’s requirement to report instances where a lawyer knows of credible evidence of misconduct poses significant challenges and raises crucial questions regarding judgment and due process. Determining what constitutes “credible evidence” in such cases is a complex matter, as it necessitates careful consideration of various factors beyond mere allegations, such as verifiability and reliability. Moreover, the potential for abuse and misuse of this requirement by vindictive or unethical attorneys is a legitimate concern, as it could lead to frivolous or baseless accusations aimed at tarnishing adversaries. This not only undermines the integrity of the legal profession but also places an undue burden on regulatory bodies like the State Bar of California, which is already grappling with limited resources. Furthermore, the mandate to report without undue delay may exacerbate these issues by fostering a culture of hasty and premature reporting, devoid of thorough review or due diligence. Therefore, it is imperative that any reporting under Rule 8.3 be approached with utmost caution and responsibility, ensuring that ethical considerations, due process, and the pursuit of justice remain paramount in the legal profession.

I urge legal scholars, practitioners, judges, and community leaders to join in this dialogue and offer insights and guidance on how we can navigate this complex intersection of law and religion, and the delicate balance between ethical obligations and unintended consequences. By working together, perhaps we can find mutually acceptable solutions that uphold both our professional responsibilities and our religious convictions. By approaching this issue with sensitivity and respect, we can ensure that all members of the legal community are able to uphold their commitments to both the law and their faith. Ultimately, the resolution may shape not only legal precedent but also the broader understanding of religious freedom and civic responsibility in contemporary society.

In addressing the nuanced issue surrounding Rule 8.3, it is essential to underscore that within my own Orthodox Jewish community of attorneys, there exists a discernible split in perspectives. This divergence of opinions further underscores the complexity of the matter and the need for careful consideration and consultation with knowledgeable rabbinic authorities. While I refrain from definitively asserting that Rule 8.3 inherently invokes the Mesira problem, I advocate for a thoughtful examination of its potential implications, urging individuals to seek guidance from their own rabbinic authority for clarification, tailored to their specific circumstances. Currently engaged in meaningful discussions with esteemed rabbis in both New York and Israel, individuals renowned for their profound insights into halacha and its practical applications, I aim to provide clarity and further guidance to our community. The forthcoming findings from these consultations will be shared in an upcoming editorial with the Daily Journal.